The following terms have the following meanings:
(a) "Agreement" means this Web Listing Agreement, all schedules attached hereto (which are incorporated herein by reference) and all amendments;
(b) "Customer Content" means all data, information and files provided by the Customer to Studio 29 for the purposes of listing on the Web Site;
(c) "Fee" means the rates set by Studio 29 for the Services set out above;
(d) "Studio 29" means Studio 29 Graphics Inc., its successors and assigns;
(e) "Intellectual Property Rights" means any and all proprietary rights provided under (i) patent law, (ii) copyright law, (iii) trademark law, (iv) design patent or industrial design law, (v) semiconductor chip or mask work law, or (vi) any other statutory provision or common law which may provide a right in either ideas, formulae, algorithms, concepts, architectures and processes, computer programming, inventions, or know-how generally, including trade secret laws;
(f) "Minimum Uptime Guarantee" means that the Service will operate without substantial interruption for of the operating time in any given period, save and except for service interruptions caused by the Customer, Users or third party equipment, hardware or software;
(g) "Service" means the operation of the WebSite which provides information about restaurants, dining rooms and cafes located throughout Canada and the opportunity of the Customer to list its Customer Content on the WebSite in accordance with the terms and conditions of this Agreement; and
(h) "User" means the person using and accessing the WebSite; and
(i) “WebSite” means the server to be maintained by Studio 29 in accordance with the terms of this Agreement, which server shall be accessible by Users through the world wide web and which shall have a domain registration of www.eatacrosscanada.com or such other domain as Studio 29 may designate from time.
All references to currency in this Agreement shall be a reference to Canadian currency unless otherwise specified.
Studio 29 does not covenant or warrant that the Web Site will be accessible and operational on an absolute basis but does warrant that the Service shall be subject to the Minimum Uptime Guarantee when enacted and utilized properly by Users during the term.
The Customer shall provide Customer Content in a format that complies with Studio 29’s technical and substantive requirements. The Customer acknowledges that it, he or she he is solely responsible for the Customer Content and that the Customer Content:
(a) shall be substantively accurate and shall comply with all applicable laws and regulations;
(b) shall not infringe an Intellectual Property Right of a third party;
(c) shall not be obscene, defamatory or violate a personal right of a third party.
2.4 Account Suspension
If at any time, the Customer is in default or violation of any term or condition of this Agreement, Studio 29 in addition to its other remedies hereunder, reserves the right to immediately suspend the Services by the Customer.
3.1 Customer Representative
The Customer will designate a single individual or designated individuals as the Customer’s administrative contact (the “Administrative Contact”) which the Customer may replace at any time by notice to Studio 29. The Administrative Contact shall be available and accessible to respond to queries from Studio 29 and to provide information as may be required. Studio 29 shall be entitled at all times to rely on the authority of the Administrative Contact to make representations and commitments on behalf of the Customer.
3.2 Dispute Resolution.
If any dispute arises between Studio 29 and the Customer as to any matter relating to this Agreement or the performance of the party’s respective obligations under this Agreement, a good faith attempt to resolve the dispute will be made by both parties through the mutual exchange of documents, information, questions and answers for a period of thirty (30) days. If the parties are unable to reach agreement on the resolution of the dispute within thirty (30) days, the dispute shall be referred to arbitration to occur in Victoria, British Columbia before a single arbitrator. If the parties are unable to agree upon the appointment of an arbitrator, the appointment shall be made in accordance with the Commercial Arbitration Act (B.C.). The arbitrator may not award damages inconsistent with this Agreement or punitive damages or any other damages not measured by the prevailing party's actual damages, and the parties expressly waive their right to obtain any such damages in arbitration. All discoveries shall be completed within sixty (60) days following the appointment of the arbitrators. All aspects of the arbitration shall be treated as confidential. All arbitrations shall be conducted in accordance with the commercial arbitration rules of the British Columbia International Commercial Arbitration Centre.
4.1 Warranty and Disclaimer
The Services are provided, to the Customer on an ‘as available’ basis without warranties of any kind, express, implied arising by statute or otherwise, with the exception of the Minimum Uptime Guarantee. The Customer expressly acknowledges that it stores data, content, files and records at its own risk and that Studio 29 may not have any control or input over certain third party equipment, backbone and connectivity sections of the WebSite and that Studio 29 therefore cannot provide warranties on the operating specifications and performance criteria of the Services. Studio 29 assumes no liability and responsibility for data, archival storage of data or security of data stored or placed through the Service.
4.2 Limitation of Liability. Studio 29’s liability for breach of warranty or otherwise under this Agreement shall not exceed the total amount of the Fee actually paid by the Customer to Studio 29 hereunder. All claims brought for on the basis of a breach of warranty set out in Section 4.1 above must be brought, and Studio 29 must receive notice of the claim, within ninety (90) days of the occurrence.
4.3 Customer Indemnity
The Customer is responsible for, and shall indemnify Studio 29 against all losses, liability, claims, damages, judgments, expenses and costs, of any kind whatsoever, including reasonable legal fees and disbursements, suffered or incurred by Studio 29 arising from claims of any third party (including Customer's customers and Users) on any basis whatsoever and arising from or in connection with any event, including but not limited to:
(a) the breach of any covenant, term, representation or warranty of this Agreement by Customer;
(b) the negligence or wilful misconduct of Customer in connection with use of the Services; or
(c) claims by any third party for libel, slander, passing off or infringement of an Intellectual Property Right arising from the Customer’s Content.
4.4 Limitation of Liability
In no event shall Studio 29 be liable for consequential, indirect or punitive losses, damages or expenses, or for lost profits, lost savings, loss of data or any other commercial or economic loss of any kind, or for any third party claim against Customer, even if the Customer has been advised of their possible existence, or even if same were reasonably foreseeable.
4.5 No Consequential Damages
Neither party shall be liable to the other party for any indirect, incidental or consequential, exemplary, punitive or special damages, losses or expenses arising out of such party’s failure to perform its obligations under this Agreement or for loss of anticipated profits or bargain or loss of data or other commercial or economic loss whether or not a party might have been advised at any time of the possibility of such damages or whether founded in contract, negligence or tort.
4.6 Intellectual Property Rights. No term of this Agreement or use of the Service by the Customer shall constitute an express or implied grant, consent or license to use or the transfer of an Intellectual Property Right owned by Studio 29 to the Customer.
The Customer shall pay the Fee in accordance with the rates set forth above and all applicable goods and services, value-added or sales/use tax thereon. Studio 29 reserves the right to modify and alter its fees once within each calendar year provided that it first provides ninety (90) days advance notice to the Customer.
5.2 Billing Cycles/Invoicing and Payment.
Studio 29 shall invoice the Customer on a monthly basis and, subject to Studio 29’s right to suspend credit and insist on payment in advance, all invoices shall be payable net thirty (30) days.
5.3 Suspension of Service
In the event that the Customer fails to make any payment when due, Studio 29 reserves the right to suspend the Service until all outstanding payments are brought current.
The Customer shall pay interest at a rate of 2% per month, calculated monthly, or 24% per annum, on all amounts outstanding from time to time.
5.5 Credit Review
The Customer hereby consents to Studio 29 obtaining credit information on the Customer from reporting agencies or other sources and to the release to Studio 29 of credit information on the Customer. In the event that Studio 29, acting reasonably, determines that the Customer has an unsatisfactory credit rating or history, Studio 29 reserves the right to request a deposit in advance of providing Services and making available the Equipment.
The term of this Agreement shall commence on the earlier of the date that (a) this Agreement is completed, signed and returned to Studio 29, and (b) the Services are enacted and shall then continue on until terminated herein.
6.2 Early Termination
The Customer or Studio 29 may terminate this Agreement at any time upon providing seven (7) days prior written notice to the other party and provided that the Customer must pay in advance prior to termination all Fees due to Studio 29 up to the effective date of termination.
6.3 Events upon Termination. Upon the termination of this Agreement for whatever reason:
(a) the Customer shall pay Studio 29 in full for all Fees due and owing ups to the effective date of termination; and
(b) upon payment in full by the Customer, Studio 29 shall deliver up or transmit to the Customer all Customer Content in the possession or control of Studio 29 in a format determined by Studio 29; and The termination of this Agreement shall otherwise be without prejudice to any rights or obligations which shall have accrued prior to such termination.
7.1 No Waiver. No failure or delay on the part of either party to exercise its right of termination or cancellation nor any default by either party shall be construed to prejudice the other party's right of termination or cancellation for default or for any other subsequent defaults.
All notices and communications shall be directed by each party to the other at the location, facsimile number or e-mail address set out above. All notices and communications given by one party to the other will be sufficiently given if delivered personally or if sent by prepaid registered mail or by fax and shall be deemed to have been duly given when delivered in person, or the next business day following the day that they are sent by fax, or in the case of prepaid registered mail, except during a period of interruption of normal postal service, on the tenth day following the date of mailing.
7.3 Succession. This Agreement shall be binding on and, except as otherwise provided, shall enure to the benefit of the legal successors or representatives of the parties.
7.4 Entire Agreement
The making, execution and delivery of this Agreement has not been induced by any representations, statements, warranties or agreements other than those expressed in this Agreement. This Agreement embodies the entire agreement of the parties, and there are no further or other agreements undertakings, written or oral, in effect between the parties, relating to the subject-matter of this Agreement.
7.5 Governing Law.
This Agreement and the rights of the parties relating to this Agreement shall be governed by the laws of the Province of British Columbia without reference to principles of conflicts of law. As the Equipment is located within the Province of British Columbia, Studio 29 and the Customer agree that the courts of the Province of British Columbia shall have exclusive jurisdiction in relation to all matters arising hereunder.
7.7 Force Majeure
In the event that either party is delayed or is unable to perform its obligations hereunder due to labour disputes, strikes, walkouts, fires, unusual delay by suppliers or carriers, unavoidable catastrophes, civil unrest or other circumstances of any kind beyond its control, including inclement weather and Acts of God, that party shall be excused from the performance of such obligation to the extent of such delay.